This matter is presently before the Court on motions of the defendant to dismiss the action because the Complaint and 'Amended Complaint' fail to state a claim against the defendant upon which relief can be granted, or, in the alternative, to dismiss the action for lack of jurisdiction.

On December 16, 1959, plaintiff filed a Complaint against defendant seeking to recover unpaid overtime compensation allegedly due Clyde Vanasdlen, an employee of the defendant, under the provisions of the Fair Labor Standards Amendments of 1949 (Act of October 26, 1949, c. 736, 63 Stat. 910, 29 U.S.C.A. § 201 et seq.).

On February 12, 1960, plaintiff filed what he designated an 'Amended Complaint' against said defendant seeking to recover unpaid overtime compensation allegedly due to John J. Strevig (also an employee of defendant) under the provisions of the aforesaid Fair Labor Standards Amendments of 1949. It is actually an amendment to the Complaint which does not repeat the allegations of the original Complaint as to Clyde Vanasdlen but merely adds allegations as to the additional employee, John J. Strevig.

1. A. of both the motions to dismiss the Complaint and the 'Amended Complaint' allege:

'The allegations in the Complaint ('Amended Complaint') bring the case within the exception of Section 7(c) of the Fair Labor Standards Act, as amended, relating to first processing of milk;'

1. B. of the motion to dismiss the Complaint alleges:

'The complaint (as to Clyde Vanasdlen) was filed more than two years after August 15, 1957, the beginning date of the alleged violation, and, therefore, is barred by the limitation in Section 6(a) of the Portal-to-Portal Act which amended the Fair Labor Standards, Act;'

1. B. of the motion to dismiss the 'Amended Complaint' alleges:

'The Amended Complaint was filed more than two years after August 21, 1957, the beginning date of the alleged violation, as to John J. Strevig and, therefore, is barred by the limitation in Section 6(a) of the Portal-to-Portal Act, which amends the Fair Labor Standards Act;'

1. C. of the motion to dismiss the Complaint alleges:

'The Complaint fails to show authority in Mrs. Clyde Vanasdlen or any other person to act on behalf of or to receive payments alleged to be due to Clyde Vanasdlen.'

1. C. of the motion to dismiss the 'Amended Complaint' alleges:

'The Amended Complaint states a separate cause of action from the original Complaint, involving a distinct and different period under the applicable statute of limitations, and therefore the two cannot be combined in one suit.'

2. of both motions allege, in slightly different verbiage, respectively:

(2. in first motion.) 'In the alternative, to dismiss the action for lack of jurisdiction over the subject matter in that the Secretary of Labor has no authority to sue, under Section 16(c) of the Fair Labor Standards Act, unless his complaint alleges that the case involves an issue of law which has been settled finally by the Courts.'

'The Fair Labor Standards Act is remedial and calls for a liberal construction, but each case must stand on its own facts. * * * Exemptions are to be restrictively interpreted. * * * It is the employer's burden to prove that the employee is exempt from the coverage of the Act. * * *'

'It is a settled principle of law that a complaint should not be dismissed unless it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts which could be proved in support of the allegations set forth therein. Furthermore, the complaint should be viewed in a light most favorable to the plaintiff, and the truth of the facts well pleaded, including facts alleged on information and belief, and admitted. * * *'
*fn1"

In Stratton et al. v. Farmers Produce Co., Inc., 8 Cir., 1943, 134 F.2d 825, 827, the court held that in actions under the Fair Labor Standards Act there is a special necessity 'for having a detailed knowledge of all pertinent facts relative to the nature of an employer's business and of the work done for him by an employee, before attempting to reach a conclusion as to whether the employee is or is not entitled to the (wage and hour) benefits * * * of the Act.'

In McComb v. Johnson, 8 Cir., 1949, 174 F.2d 833, in reversing the District Court which had dismissed an action under this Act because the complaint failed to state a claim upon which relief could be granted, the court stated, inter alia: (at page 834)

At this time the Court is without facts from which it could make a definitive ruling on the question as to whether the allegations in the 'Amended Complaint' bring the case within the exception of Section 7(c) of the Fair Labor Standards Act relating to first processing of milk.

As to 1 B. -- Statute of Limitations (Both motions).

The original Complaint alleges violations as to employee Vanasdlen, during the period August 15, 1957, to April 30, 1958. The 'Amended Complaint' added further alleged violations as to another employee, strevig, during the period August 21, 1957 to July 1, 1959.

Section 7 of the Portal-to-Portal Act (29 U.S.C.A. § 256) provides that an action under the Fair Labor Standards Act of 1938 shall be considered to be commenced on the date when the complaint is filed. Section 6 of the Portal-to-Portal Act (29 U.S.C.A. § 255) establishes a two year statute of limitations for actions to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages under the Fair Labor Standards Act.

The record indicates that the original Complaint here was filed December 16, 1959, and the 'Amended Complaint' was filed February 12, 1960. There is no question that if the statute of limitations is properly pleaded as a defense, it would operate to outlaw that portion of the Vanasdlen claim accruing during the period August 15, 1957 to December 16, 1957, and that portion of the Strevig claim accruing during the period August 21, 1957 to February 12, 1958.

It is well settled that 'A separate cause of action for overtime compensation accrues at each regular payday immediately following the work period during which the services were rendered and for which the overtime compensation is claimed.' Shandelman v. Schuman, D.C.E.D.Pa.1950, 92 F.Supp. 334, 335.

Inasmuch as a portion of both claims alleged are not barred by the Statute of Limitations, defendant's motions to dismiss on the ground that the cause is barred by the said Statute must be denied.

As to 1 C. (First motion). 'Complaint fails to show authority in Mrs. Clyde Vanasdlen or any other person to act on behalf of or to receive payments alleged to be due to Clyde Vanasdlen.'

In Fleming v. Hawkeye Pearl Button Co. et al., 8 Cir., 1940, 113 F.2d 52, 56, the court said: 'The statute (Fair Labor Standards Act) is remedial, with a humanitarian end in view. It is therefore entitled to a liberal construction.' Accordingly, courts have held that actions could be maintained by the personal representatives of deceased employees under Section 16(c) of the Act.
*fn2"

Certainly if the Secretary of Labor could act only upon the receipt of a written request by the personal representative of a deceased employee, the claim might conceivably be barred in substantial part due to delay necessarily incurred in processing an estate.

The law of Pennsylvania clearly vests authority in the widow of a deceased employee to receive wages, as in the instant case. See 20 P.S. § 320.201, which reads as follows:

'Any employer of a person dying domiciled in the Commonwealth at any time after the death of the employee, whether or not a personal representative has been appointed, may pay wages or salary in an amount not exceeding two hundred and fifty dollars due to the deceased employee to the spouse, any child, the father or mother, or any sister or brother (preference being given in the order named) of the deceased employee. Any employer making such a payment shall be released to the same extent as if payment had been made to a duly appointed personal representative of the decedent and he shall not be required to see to the application thereof. Any person to whom payment is made shall be answerable therefor to anyone prejudiced by an improper distribution.'

There is no question that the cause of action survives. 20 P.S. § 320.601.

This reason to dismiss is clearly frivolous and will be denied.

As to 1 C. (Second motion) The 'Amended Complaint' states a separate cause of action from the original Complaint involving a distinct and different period under the applicable Statute of Limitations and therefore the two cannot be combined in one suit.

The final sentence in Section 16(c) of the Fair Labor Standards Act (29 U.S.C.A. § 215(c)) certainly indicates clearly that the claims of more than one employee may be joined in a suit instituted by the Secretary of Labor under this portion of the Act, to wit: 'In determining when an action is commenced by the Secretary of Labor under this subsection for the purposes of the two-year statute of limitations provided in section 255(a) of this title, it shall be considered to be commenced in the case of any individual claimant on the date when the complaint is filed if he is specifically named as a party plaintiff in the complaint, or if his name did not so appear, on the subsequent date on which his name is added as a party plaintiff in such action.'

Defendant has its principal place of business in Lancaster County, Pennsylvania, with receiving stations in Cumberland and Adams Counties, Pennsylvania. The work not only of the two receiving stations but of the two employees named in the original Complaint and the 'Amended Complaint' was practically the same. There are questions of law and fact common to the claims of both of the said employees. The fact that the time element varies with respect to the two employees is of no consequence. If the Statute of Limitations is properly pleaded, it would merely involve some mathematical computations to determine the degree that the claims of either would be reduced by the statute. The fact that the work involved two different locations at varying periods of time does not, in my opinion, support defendant's claim that separate causes of action are asserted. Basically, precisely the same factual situations and questions of law are presented in the original Complaint and 'Amended Complaint' as to both named employees.

'* * * The purpose of the proviso is to prevent the Administrator from using the authority granted in the general clause to bring test cases involving novel questions of law. See Conference Report No. 1453, October 17, 1949 (To accompany H.R.5856), U.S. Congressional Service, 1st Session, 1949, p. 2272.

'It was the intention of Congress that the Administrator should have general authority to institute suits to recover employees' claims in any Court of competent jurisdiction, but if it should appear during the course of any such suit that the Administrator has used the authority granted him for the purpose of testing a novel question of law, then the proviso should operate to divest the Court of its jurisdiction. One claiming the benefit of a proviso following a general clause in a statute has the burden of showing that the proviso is applicable. * * *'

Motions to dismiss for lack of jurisdiction will be denied.

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